Tag Archives: Noel Cunningham

The Disclosures Tribunal will hear submissions tomorrow from the legal representatives for the various parties in relation to the evidence it heard last summer.

This refers to the false rape allegation that ended up being sent to the then Garda Commissioner’s office in May 2014 and remained there until early last year (more of this below).

But what of the evidence we heard more recently, from January 12 to February 8 in respect of the tribunal’s term of reference E:

“To investigate whether the false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by Commissioner O’Sullivan to discredit Sergeant Maurice McCabe at the Commission of Investigation into Certain Matters in the Cavan/Monaghan district under the Chairmanship of Mr Justice Kevin O’Higgins.”

Readers will recall how the tribunal has been looking at what happened in terms of the then Garda Commissioner Noirin O’Sullivan’s legal strategy during the O’Higgins Commission of Investigation between May 2015 and December 2015.

This commission, overseen by Judge Kevin O’Higgins, was set up to look at about a dozen Garda investigations in the Cavan/Monaghan area between 2007 and 2010, following complaints made by Sgt Maurice McCabe about these investigations.

Readers may wish to note the following key events or incidents ahead of and during the O’Higgins Commission of Investigation in May 2015…

Tuesday and Wednesday, May 12 and 13, 2015: The consultations involving Chief Supt Rooney and Supt Noel Cunningham with the legal team and which were also attended by Chief Supt Healy. Ms Ryan was also present.

Friday, May 15, 2015: The evidence given to the commission by retired Chief Supt Colm Rooney, when questioned by his and Commissioner O’Sullivan’s senior counsel Colm Smyth, which prompted a legal row and gave rise to Chief Supt Healy seeking Ms O’Sullivan to reconfirm her instructions – that her legal team was to challenge the motivation and credibility of Sgt McCabe.

At the time, Mr Smyth also said his instructions were to challenge Sgt McCabe’s integrity but he later, in November 2015, told the commission this was an error on his part.

The call by Judge O’Higgins for Ms O’Sullivan’s legal team to prepare a document, on her behalf, outlining what claims they were preparing to put to Sgt McCabe as, Judge O’Higgins said, “nobody is going to be ambushed”.

Saturday and Sunday, May 16/17, 2015: The preparation of that document by legal counsel and circulated among and contributed to by retired Chief Supt Rooney and Supt Cunningham. This ended up being the letter from the Chief State Solicitor’s Office.

Monday, May 18, 2015: The production of this letter – which contained significant errors referred to in the tribunal as “factual inaccuracies” by Ms O’Sullivan and “gross falsehoods” by Michael McDowell SC, for Sgt McCabe – to the commission and Sgt McCabe’s legal team.

Perhaps the most grievous error in this letter was the claim that Sgt McCabe had informed Supt Cunningham, at a meeting in Mullingar in August 2008, that the “only reason” he made a complaint against Superintendent Michael Clancy “was to force him to allow Sergeant McCabe to have the full DPP directions conveyed to him”.

This is in respect of the DPP directions related to the Ms D case (see below)

The letter stated:

“Superintendent [Noel] Cunningham was accompanied to this meeting by Sergeant Yvonne Martin. Notes were taken at the meeting and countersigned by Sergeant Martin, and a detailed report of the meeting was prepared by Superintendent Cunningham, and its contents agreed with Sergeant Martin, and forwarded to Chief Superintendent [Colm] Rooney.”

“In the course of this meeting Sergeant McCabe advised Superintendent Cunningham that the only reason he made the complaint against Superintendent [Michael] Clancy was to force him to allow Sergeant McCabe to have the full DPP directions conveyed to him.”

The reality is Sgt McCabe had prepared a report for Supt Clancy – at Supt Clancy’s request after he had been confronted by members of the D family in public in October 2007.

It is still not clear how this wrongful allegation – proven false by a tape recording of the meeting subsequently given to the commission by Sgt McCabe – ended up being committed in writing in this document of May 18, 2015.

It also was later repeated in written submissions made to the commission in June 2015.

In respect of this blackmail claim, Colm Smyth SC has told the tribunal:

“…we weren’t given the correct version, and there was a clear misunderstanding – not so much a misunderstanding, there were clearly wrong instructions.”

He also told the tribunal:

“Can I say this: it was remiss of me not to apologise to Sergeant McCabe in relation to that matter. It should have been done.”

When Supt Cunningham gave evidence, he also conceded this allegation was wrong but explained he simply hadn’t spotted it.

He said:

“I’m embarrassed by the mistake, because I would be usually very careful in everything I did, and I’m embarrassed if it has in any way caused any distress to Sergeant McCabe, because it certainly was never any intention to do that, because it was, Judge, a mistake, nothing more, nothing less, Judge.”

Either way.

That Chief State Solicitor’s letter – mistakes and all – was handed into the commission and to Sgt McCabe’s legal team on the morning of Monday, May 18.

And Mr Smyth, apparently not realising he was mistaken, mentioned the blackmail allegation twice on that Monday during the day’s hearings and included mention of it in respect of this meeting Sgt McCabe had with Supt Cunningham, who was accompanied by Sgt Yvonne Martin, in Mullingar in August 2008.

On the morning of May 18, 2015, at around 10.50am, Mr Smyth first mentioned it – soon after Mr McDowell referred to the Chief State Solicitor’s letter as “a conflation of falsehoods, evasions and untruths”.

Mr Smyth:

“…the complaints he was making were complaints about the working and about the administration and about the management and about issues touching on probationer Garda in Bailieborough station and are relevant to this module as much as they are relevant to other modules.

“It flows right through all modules, the motivation and the credibility of Sergeant McCabe in making the allegations he made. And he withdrew, he was prepared to — the only reason we have Yvonne apparently Sergeant Yvonne Martin who is a witness to a statement that he made.

“The only reason he made the allegation she made on 28th of February in a letter which was sent to Superintendent Clancy ultimately was that he was making those allegations to force the hand of Superintendent Clancy to seek further clarification from the DPP.”

Later, at around 4pm, when Sgt McCabe was being cross-examined, Mr Smyth raised the blackmail allegation again when they had this exchange:

Smyth: “There was a meeting there in Mullingar Garda Station and that meeting was the sergeant — and at that meeting was Sergeant Yvonne Martin, is that correct?”

McCabe: “That is correct.”

Smyth: “I think there were notes taken at that meeting?”

McCabe: “There was, by each side.”

Smyth: “A detailed report was prepared by Superintendent Cunningham, there is no dispute about that.”

McCabe: “There is, I didn’t see it, he has given his version.”

Smyth: “All right. It was forwarded, that report, to Superintendent Rooney, this is the issue I want to ask you about.”

McCabe: “Yeah.”

Smyth: “In the course of that meeting, Sergeant, you advised Superintendent Cunningham that the only reason you made a complaint against Superintendent Clancy was to force him to allow you to have the full authority directions conveyed to you?”

McCabe: “That is absolutely false.”

Smyth: “Right.

McCabe: “Absolutely, Judge.”

Smyth: “The only reason, and this will be the evidence of Superintendent Cunningham, the only reason that you wrote those list of complaints for Superintendent Clancy, do you understand, that you made the complaints about Superintendent Clancy was that you wanted to put pressure on Superintendent Clancy to get the full directions from the authority conveyed to you.”

McCabe: “That is absolutely false. Absolutely.”

Smyth: “Fair enough.”

McCabe: “I have a clear recollection of that meeting…”

Sgt McCabe had more than a recollection.

He had a tape recording of the meeting which proved the allegation was false.

The tribunal has since heard what may be deemed to be attempts to downplay the significance of Sgt McCabe’s tape.

Solicitor Annemarie Ryan claims she gave the commission and Sgt McCabe’s counsel Supt Cunningham’s report of this Mullingar meeting – which matches the tape – on the morning of May 18, along with the Chief State Solicitor’s letter.

But Mr McDowell has categorically told the tribunal this didn’t happen.

In addition, the tribunal has heard that, according to the transcript of the O’Higgins Commission of Investigation, on May 19, 2015,Supt Noel Cunningham was stood down from giving evidence that day as his report wasn’t given to Sgt McCabe’s counsel at that point.

In any case…

The false blackmail allegation was later repeated in submissions which were submitted in June, saying:

“Sergeant McCabe then made a series of complaints against other officers in Bailieboro station, including Superintendent Clancy, against whom he alleged a lack of support. Chief Superintendent Rooney appointed Superintendent Cunningham to investigate these complaints. Superintendent Cunningham attempted to meet Sergeant McCabe to discuss the complaints and finally did so on the 25th August 2008. On this occasion, Superintendent Cunningham was accompanied by Sergeant Yvonne Martin.”

“It is understood that Superintendent Cunningham and Sergeant Martin will give evidence that Sergeant McCabe said at this meeting that the complaint which he had made was a bid by him to have the full DPP directions conveyed to him and to the complaining party. This is recorded in a report of the meeting prepared jointly by Sergeant Martin and Superintendent Cunningham.”

It’s curious the mistake was repeated if Supt Cunningham’s report was already in the possession of a member of his own legal team.

Furthermore, Supt Cunningham has also given evidence that he submitted his report to solicitor Annemarie Ryan a second time, ahead of the submissions being entered, and yet the mistake was committed to writing a second time.

And worse, Michael McNamee BL told the tribunal he and Colm Smyth SC and Gareth Byrne BL were all taken totally by surprise on June 24 when they learned of the blackmail allegation error.

And, to make things even more confusing, Judge Peter Charleton has told the tribunal that Sgt Martin wrote her own report of the Mullingar meeting in 2008 which, he said, “everybody accepts is accurate”.

And he has also told the tribunal that the idea put forward in the submissions – that Sgt Martin was somehow going to corroborate whatever evidence Supt Cunningham was going to give – Sgt Martin “never said any such thing”.

But perhaps the following is even more significant…

The tribunal has repeatedly heard that if the mistaken or false allegation of blackmail put by Mr Smyth to Sgt McCabe on May 18, 2015, had been identified by people in the room at that point (namely Supt Cunningham) – then perhaps the matter would have been cleared up.

Last week, at the tribunal, Supt Cunningham was specifically asked if he heard Mr Smyth putting the false allegation to Sgt McCabe and he said he couldn’t recall if he had heard it clearly.

He said:

“I can’t say, Judge, I was hanging on every word, and I can’t say, Judge, that I was as clear as I am now reading that transcript, on that day, as I am today, Judge…I don’t recall being that clear in my mind, Judge, on that day. I don’t recall being that clear in my mind, Judge.”

Mr McDowell put it to Supt Cunningham that he didn’t alert anyone to the error and Supt Cunningham said:

“If I had heard it — if I had been clear in my mind, I’d have said that is wrong, because it was clearly wrong..”

This brings us back to Chief Supt Fergus Healy’s evidence.

When he was giving evidence about this exchange between Sgt McCabe and Mr Smyth – in which Sgt McCabe said the blackmail allegation was “absolutely false” – Mr McDowell asked Chief Supt Healy:

“Did either of them [Colm Rooney or Noel Cunningham] come to you that evening and say, hold it, there’s a car crash about to take place here, counsel is putting a completely wrong version to Sergeant McCabe, that isn’t what we meant and that isn’t what we told counsel?”

Chief Supt Healy said:

“They may not have come to me, they may have gone to counsel, I don’t know, but certainly I can’t remember what arose after that. But counsel was questioning the witnesses and putting issues to them, so it was a matter for counsel to deal with that.”

And yet.

When questioned earlier by Kathleen Leader BL, for the tribunal, Mr Healy did recall Mr Cunningham coming to him on May 18.

But it doesn’t appear that it was to correct the false allegation that had been put to Sgt McCabe.

Following on from questions concerning Mr Smyth’s cross-examination of Sgt McCabe on May 18 – during which Sgt McCabe said the blackmail allegation was “absolutely false” – Ms Leader referred to a note Chief Supt Healy had taken on May 18 about what happened that day.

This note, the tribunal heard, includes the phone number of Sgt Yvonne Martin.

And where did Chief Supt Healy get Sgt Martin’s number from? Supt Noel Cunningham.

Ms Leader and Chief Supt Healy had the following exchange:

Leader: “Now, just alongside that [referring to the notes] there is a phone number which is redacted from our circulated materials.

Healy: “Yes.”

Leader: “Is that Sergeant Martin’s phone number?”

Healy: “Yes, yes.

Leader: “If you could tell us what exchange took place in relation to Sergeant Martin?”

Healy: “I think at that particular time Sergeant Martin’s name was mentioned in the proceedings and I’m not 100 percent sure but I think it was Superintendent Cunningham was either articulating to me that this person was important with respect to what had happened and he basically gave me these details that are in the note, and in the course of that, I had a — I rang Sergeant Martin, just to tell her that she may be required at the Commission.

“And, after that, I never had any contact with her at all. Mr Hegarty, who was a solicitor, who was at the proceedings, had approached me and had mentioned to me that I had contacted him — contacted her and I just at that stage realised that he was her representative and I took a backward step from there, I had no more contact with her.”

Leader: “And to be clear and fair to Sergeant Martin, I think it’s been established, and correct me if I am wrong, that no details of what had happened in the Commission that day were shared with her?”

Healy: “Oh, no, no. It was just a call to put her on notice per se. After that, there was no detail whatsoever discussed at all with her.”

Leader: “Okay. She was never asked to comment –”

Healy: “No.”

Leader: “..in any way in relation to what had been put forward at the Commission?”

Healy: “I had no conversations with her on that front at all. It was just by way of a courtesy call of a notification. Whether it was going to arise or not, I had no control over that at all. And then, as I said, when it became clear to me that there was a separate legal representative acting on her behalf, I didn’t engage any further.”

So.

Does this indicate that Supt Cunningham did hear the exchange in which the false allegation was put to Sgt McCabe and did speak to Chief Supt Healy about it?

Does it indicate that, instead of correcting him, Supt Cunningham indicated that Sgt Martin was someone who was “important with respect to what had happened” – as alleged by Mr Smyth in his questioning of Sgt McCabe?

Was Sgt Martin ever told, by her supposed legal representative, what was said in her name on May 18, 2015?

This would seem crucial given the tribunal has heard solicitor Ms Ryan say she believes Sgt Martin never had sight of the Chief State Solicitor’s letter which mentions her.

Also.

It’s important to note that the tribunal has heard Sgt Martin has given a statement to the tribunal.

It has heard that part of that statement states:

I was requested to attend a meeting on 25th August 2008 with Superintendent Noel Cunningham and Sergeant Maurice McCabe at Mullingar Garda Station. The purpose
of my attendance at this meeting was to witness the notes taken by Superintendent Cunningham.

– I did not take part in the discussion between Superintendent Cunningham and Sergeant Maurice McCabe.

– In May 2015, nearly 7 years later, I received a telephone call from Superintendent Cunningham who informed me that he had given Chief Superintendent Fergus Healy my phone number and that I would be receiving a call from him regarding the above meeting.

– Subsequently I received a telephone call from Chief Superintendent Fergus Healy who told me that I might be required to attend at the O’Higgins Commission of Investigation to give evidence in relation to the above meeting.

– I received no further communication from Chief Superintendent Healy, Superintendent Noel Cunningham or anyone connected with the Commission.

– The contents of this statement are based on my memory of the meeting and a review of the documentation relevant to the Commission which has been provided to me by the Chief State Solicitor’s Office on foot of a High Court Order.

– For completeness, I never attended at the Commission of Investigation, nor have I ever, to this day, been contacted by the Garda Commissioner, her legal team, GSOC or the media, to clarify my involvement in or recollection of the above meeting. Further, I was never stationed in Bailieborough Garda Station nor did I have any dealings with any of the members attached to it.”

Readers will note this section of her statement that the tribunal has heard doesn’t mention she had a legal representative at the commission.

Meanwhile…

The report of the O’Higgins Commission of Investigation doesn’t list Sgt Martin as being represented at the commission, presumably because she wasn’t a witness.

But solicitors’ firm Smyth O’Brien Hegarty is listed as representing almost 20 gardai.

Readers will recall how a retrospective allegation made against Sgt McCabe by a 14-year-old daughter (Ms D) of a Garda colleague (Mr D) of Sgt McCabe’s in 2006 – which the DPP fulsomely found, in April 2007, had no basis for prosecution and which Sgt McCabe was informed of by the state solicitor for Cavan Rory Hayden on the day the directions were issued – resurfaced in 2013.

This came about when Ms D attended a counselling session with a RIAN counsellor.

It was then unnecessarily re-referred – in so much as it had been previously investigated – to TUSLA but instead of it being the “humping” allegation made in 2006 by Ms D, it was referred to TUSLA as a rape allegation, unbeknownst to Ms D.

This allegation of rape sat in an unallocated TUSLA file until May 2014 when it was almost simultaneously found to be a mistake and yet travelled officially all the way up to the then Garda Commissioner Noirin O’Sullivan’s office – even though certain gardai involved in moving it up the chain of command knew about the 2006/2007 allegation and knew that there was no such rape allegation made by Ms D against Sgt McCabe.

The tribunal has already heard that, within days of the mistake in the TUSLA referral being discovered, the then Assistant Commissioner Kieran Kenny received an amended referral but never passed it on to Ms O’Sullivan.

The false rape allegation was still on file in the commissioner’s office until the tribunal began in early 2017.

The Disclosures Tribunal is examining the knowledge and circulation of this rape allegation among senior gardai – and whether the false allegation and/or file was knowingly used by senior gardai to discredit Sgt McCabe.

Although Supt Cunningham is not waiving his client/lawyer legal privilege, it is hoped Supt Cunningham will be able to shed light on how and why several specific events occurred at the O’Higgins Commission of Investigation in 2015.

It’s also hoped Supt Cunningham may be able to help shed light on a matter that, to use a term used several times by various counsel at the tribunal, appears to have left solicitor at the Chief State Solicitor’s Office Annemarie Ryan and Michael McDowell SC, for Sgt Maurice McCabe, “diametrically opposed” to each other.

Specifically, Ms Ryan has given evidence to say that she gave Supt Cunningham’s report of an August 2008 meeting with Sgt Maurice McCabe in Mullingar to both the commission and Sgt McCabe’s counsel – namely Mr McDowell – on the morning of May 18, 2015.

This prompted Mr McDowell to have the following exchange with Judge Peter Charleton.

McDowell: “The report by Superintendent Cunningham dated some day in September 2008 was not handed in on day 4 [May 19, 2015] — or day 3 [May 18, 2015]. It was produced at a later stage.”

Charleton: “Maybe. But the evidence I have at the moment is that it was actually handed in with the letter —

McDowell: “No, it wasn’t.”

Charleton: “Well, somebody is going to have to tell me that, and not just by nodding and gesticulating. If that is going to become important, somebody will have to tell me by evidence.”

McDowell: “I think, Judge, that if you check the transcript, the evidence is the contrary, that it wasn’t handed in that day.”

Charleton: “Well, the evidence is it was handed in that day and that people didn’t get a chance to read it, specifically those whose name was to the letter. But, Mr. McDowell, that can all be corrected. Don’t worry about it. That’s my understanding of it, but I actually think I’m right. I don’t always think I’m right, but I actually think I’m right on this occasion.”

McDowell: “I know I am not always right, but on this I think I am right.”

Charleton: “You could well be, because you were there, but I think someone is going to have to tell me about that if it becomes important.”

Why does this matter?

Because Supt Cunningham’s report of this Mullingar meeting matched the transcript of Sgt McCabe’s tape recording of the same.

And yet, this fact came as a “total surprise” to Supt Cunningham’s legal team on June 25, 2015, as stated by Michael McNamee BL, for the former Garda Commissioner Noirin O’Sullivan.

To recap.

Readers will recall how a legal row broke out at the commission on Friday, May 15, 2015, while retired Chief Supt Colm Rooney was giving evidence.

After the row – and after the legal team for then Garda Commissioner Noirin O’Sullivan, Supt Cunningham, Chief Supt Rooney and Supt Michael Clancy, among others said it was Ms O’Sullivan’s instructions to challenge the motivation of Sgt McCabe – Judge Kevin O’Higgins called on Ms O’Sullivan’s legal team to supply the commission and Sgt McCabe with a document outlining the claims that they intended to put to Sgt McCabe.

This letter, from the Chief State Solicitor’s office, was submitted to the commission’s chair and Sgt McCabe’s legal team on the morning of May 18, 2015.

This letter included an allegation of a blackmail-like scenario against Sgt McCabe in paragraph 19 of the letter.

It stated:

“Having been appointed to investigate Sergeant McCabe’s complaint against Superintendent Clancy, now Superintendent Noel Cunningham, having attempted on a number of occasions to meet with Sergeant McCabe, eventually met with Sergeant McCabe by appointment on the 25th August 2008 in Mullingar Garda Station, to receive details of his formal complaint.

“Superintendent Cunningham was accompanied to this meeting by Sergeant Yvonne Martin. Notes were taken at the meeting and countersigned by Sergeant Martin and a detailed report of the meeting was prepared by Superintendent Cunningham, and its contents agreed with Sergeant Martin and forwarded to Chief Superintendent Rooney. In the course of this meeting Sergeant McCabe advised Superintendent Cunningham that the only reason he made the complaints against Superintendent Clancy was to force him to allow sergeant McCabe to have the full DPP directions conveyed to him.”

Colm Smyth SC, for Ms O’Sullivan and other gardai, put this allegation to Sgt McCabe as he gave evidence on Monday, May 18, 2015 and Sgt McCabe said it was “absolutely false”.

Kathleen Leader BL, for the tribunal, previously said that while Supt Cunningham gave evidence on May 19, 2015, “an issue arose with regard to the circulation of documentation which led to Superintendent Cunningham not completing his evidence on that day”.

The tribunal hasn’t heard the details of that issue.

In any event, the commission didn’t sit after May 19, 2015 until June 25, 2015.

But on June 11, 2015, lengthy submissions were given to the commission and to Sgt McCabe’s legal team, on behalf of Ms O’Sullivan and the other gardai, and in one paragraph, the allegation of blackmail was repeated.

And, the submission claimed, evidence would be put forward to support this.

It said:

“It is understood that Superintendent Cunningham and Sergeant Martin will give evidence that Sergeant McCabe said at this meeting that the complaint which he had made was a bid by him to have the full DPP directions conveyed to him and to the complaining party. This is recorded in a report of the meeting prepared jointly by Sergeant Martin and Superintendent Cunningham.”

However,

On June 25, 2015, when the commission resumed, Judge O’Higgins called into question this blackmail-like allegation as set out in the Chief State Solicitor’s letter of May 18, 2015.

This was because, in the intervening period of when the commission wasn’t sitting, Sgt McCabe had provided a secret tape recording of the meeting which proved that no such blackmail situation had unfolded at the meeting.

Colm Smyth SC, for the then Garda Commissioner and Supt Cunningham, told Judge O’Higgins that the tape recording “came up somewhat by surprise to us during the course of the examination by me of Superintendent Cunningham, I am going to have to take him through this transcript”.

Sean Gillane SC, for the commission, put the following to Supt Cunningham:

“I know you didn’t write this letter but again I infer from your evidence that in relation to paragraph 19 of the letter written by the Chief State Solicitor that has been referred to this morning, that following then is, I put no higher than this, the wrong end of the stick, in the course of this meeting Sergeant McCabe advised superintendent the only reason he made the complaint against Superintendent Clancy was to force him to allow Sergeant McCabe to have the full DPP directions conveyed to him. That just doesn’t appear to be right.”

Supt Cunningham agreed.

Supt Cunningham then went on to point out that his report of the August 2008 meeting matched the contents of Sgt McCabe’s tape.

Supt Cunningham’s report, the tribunal has heard, stated:

‘Sergeant McCabe stated that this report was composed by him to highlight matters that occurred in Bailieborough where he was Sergeant in Charge in Bailieborough station. He stated the report was a bid by him to have the full directions of the DPP conveyed to him and the Ds in relation to the allegations made against him by Ms. D and subsequent investigation.’

In a later statement to the Disclosures Tribunal, Mr Smyth attempted to explain why a false allegation had been put to Sgt McCabe at the commission. He said:

“A misunderstanding in instructions which came from clients other than Commissioner O’Sullivan resulted in an inaccuracy related to an interaction with Sergeant McCabe on 25th August 2008 in Mullingar Garda Station.”

But when he gave evidence to the tribunal about this “misunderstanding in instructions”, Mr Smyth said, actually, it wasn’t so much of a “misunderstanding” but they were the “wrong instructions”.

He said:

“I think there was a misunderstanding as to the precise — the proper instructions should have been that this, just as I have related to you, we weren’t given the correct version, and there was a clear misunderstanding – not so much a misunderstanding, there were clearly wrong instructions.”

When Michael McNamee BL, also for Ms O’Sullivan and Supt Cunningham, was asked if solicitor Annemarie Ryan gave Supt Cunningham’s report of the Mullingar meeting to him on the morning of May 18, 2015, Mr McNamee said: “No, sir, she didn’t.”

Mr McNamee also gave evidence about the submissions and said “they were approved before they were delivered”.

Readers will also recall how Diarmaid McGuinness SC, for the tribunal, has told the how Supt Cunningham made a statement to the tribunal explaining why he didn’t spot the mistake in the Chief State Solicitor’s letter.

Mr McGuinness said:

“The position is that he [Supt Noel Cunningham] recites in his statement that he received the letter, he didn’t have an opportunity to print it, and read it from his phone, but he wasn’t able to read it from his own phone and he said he had bad eyesight and he said that he didn’t see the mistake in paragraph 19, and that, had he seen the error, it would have been clear to him.”

When asked about this claim and if it was brought to his attention at the time, Mr McNamee said: “No, it was not brought to my attention at the time.”

Readers may wish to note it was in this exchange Ms Ryan had with Ellen Gleeson BL, for Colm Smyth, that she claimed she gave Supt Cunningham’s report to the commission on the morning of May 18, 2015.

Ellen Gleeson: “Ms. Ryan, I think you indicated, Mr. McDowell asked you earlier to confirm that it was only when the record of the Mullingar meeting came to light that the error in the letter of the 18th of May was revealed?”

Annemarie Ryan: “That is correct.”

Gleeson: “But in fact, I think you had handed in to the Commission and I think also to Sergeant McCabe’s team, as I understand it, Noel Cunningham’s report of the September 2008 with the letter of the 18th May, you had made that available, I think you said earlier in your evidence on day 42, at page 140, that you had handed in those enclosures, including that report on that date?”

Ryan: “Yes. The 18th May 2015, I recall Mr O’Hagan [solicitor for the commission] wanted the letter immediately and, as I said, I was late for other reasons getting over there, out of my control, and I gave the letter over, I was then copying the documentation, there was three documents and they followed within a couple of minutes, and the hearings commenced and I do recall a part — and then a copy of it I was directed to give it to Maurice McCabe’s legal team. My notes show I gave over three copies and with the letter, with the documentation and no other party received that letter or documentation.”

Gleeson: “Thank you. And the September 2008 letter, of course, referred to the complaint being to Superintendent Clancy, isn’t that right?”

Ryan: “Yes.”

Gleeson: “And would you agree, therefore, that the September 2008 report, which revealed that mistake in relation to the complaint against Clancy, was made available to everyone by your clients before the transcript of the Mullingar meeting was provided by Sergeant McCabe?”

Ryan: “Yes, it was. I received it directly from the clients that morning of the 18th of May 2015.”

#DisclosuresTribunal NC says he gave report to Commission and McCabe’s legal team on May 18 2015. McDowell repeats this did not happen. Charleton suggest sometimes, even in the High Court, “sometimes paper comes in like confetti”. NC says “There were documents flying, judge”

#DisclosuresTribunal McDowell calls up transcript of day 4 of O’Higgins (May 19, 2015)..showing McDowell DIDN’T have NC’s report of Mullingar meeting on May 19. Annemarie Ryan, of Chief State Solicitor’s office, previously told tribunal this WAS given to McCabe counsel on May 18

#DisclosuresTribunal Charleton says this “wouldn’t be the first time something like that happened” and says he could recall Ms Ryan’s evidence stating she was late to the Comm on the morning of May 18. Charleton says: “It happens”

#DisclosuresTribunal Before Supt Cunnigham finishes giving evidence, McDowell, returns to Day 4 of the O’Higgins transcript. In the transcript Gillane SC, for the O’Higgins Comm, said “Judge in relation to the current position and circulation of some documents there…”

#DisclosuresTribunal “…I think it might be appropriate to stand this witness down just for the present purposes and we’ll have [him] recalled hopefully later today.” McDowell tells tribunal the witness being referred to was Supt Cunningham and he was being stood down because..

#DisclosuresTribunal ..NC’s report of Mullingar meeting had NOT been circulated to McCabe’s counsel at that point (May 19, 2015). McDowell said they did not get it later that day. He couldn’t state when he received it but it was some time after.

#DisclosuresTribunal McDowell repeats the matter wasn’t sorted out until late June (when the Comm resumed and after McCabe’s tape was produced) and that this took place AFTER the submissions (which repeated wrong claims of CSS letter) were entered on June 11, 2015.

About the Chief State Solicitor’s letter which was presented to the O’Higgins Commission of Investigation in 2015.

And about questions surrounding how claims about a meeting in Mullingar in August 2008 – attributed to Supt Noel Cunningham who was present at the meeting – ended up in a document sent to the commission from the then Chief State Solicitor Eileen Creedon’s office, only to be proven false by a taped recording of that meeting produced by Sgt Maurice McCabe and, later, Supt Cunningham’s own notes and report on that same meeting…

And how, during the commission, when asked if he had seen the Chief State Solicitor’s letter before it was sent to the commission on the morning of Monday, May 18, 2015, Mr Cunningham said “no”; then “I don’t remember seeing it, possibly”; and then “I don’t want to catch anybody short by saying something that I — I have so many documents given to me, Judge, with respect, so many documents in a short period of time.”

This afternoon.

Michael McDowell SC, for Sgt McCabe, has just told the tribunal that Supt Cunningham WAS shown the five-page 20-point letter and signed a copy of it prior to it being given to the commission.

Secondly…

Mr McDowell told the tribunal Mr Cunningham was shown it again by Annemarie Ryan, solicitor with the Chief Solicitor’s Office and asked him for his agreement to it – which he gave– when submissions, repeating the contents of the letter, were made to the commission in June 2015.

Readers will recall the Commission of Investigation into allegations of Garda misconduct by Garda whistleblower Sgt Maurice McCabe, overseen by Judge Kevin O’Higgins, in 2015.

In the wake of the publication of the commission’s report, in May 2016, it emerged that it failed to report certain matters that happened during the commission.

Michael Clifford, in the Irish Examiner, reported that, at the beginning of the proceedings, Colm Smyth SC, for the Garda Commissioner Noirin O’Sullivan, said that evidence would be produced to show that Sgt McCabe had told two other gardai that he made the complaints out of malice at a meeting in Mullingar in August 2008.

This claim of intention on the part of An Garda Siochana was later dropped as Sgt McCabe went on to produce a recording of the meeting which proved this was untrue.

However, what hasn’t been reported is what the gardai alleged motivated Sgt McCabe to act out of malice. Today, we can reveal what this is.

Judge O’Higgins was told that Sgt McCabe acted out of malice because he wanted the DPP’s directions made in respect of Ms D’s 2006 “humping” allegation overturned.

However, these are the DPP’s directions:

Dear Sir,

I acknowledge receipt of your letter dated 1st March 2007 together with copy Garda investigation file.

I agree with you and the Guards, that the evidence does not warrant a prosecution. There was no admission. The incident as described by the injured party is vague. It appears that it was only when she was eleven/twelve that she decided that whatever occurred was sexual in nature.

Even if there wasn’t a doubt over her credibility, the incident that she describes does not constitute a sexual assault or indeed an assault.

Further, the account given to her cousin [redacted] differs in a number of respects to that given to her parents and the Guards.

There is no basis for a prosecution.

An Garda Síochána made this claim to Judge O’Higgins on the basis that it didn’t know Sgt McCabe was fully aware of the DPP’s full, seemingly unequivocal directions.

And when he made this known at the O’Higgins investigation, this claim by An Garda Siochana was also dropped – and was also never mentioned in the report.

It now seems clear that knowledge of both the O’Higgins Commission of Investigation, which was carried out in private, and the Disclosures Tribunal, which is being carried out in public, are needed to understand what happened to Sgt McCabe.

From top: Michael McDowell; Keara McGlone and Carmel McAuley arriving at the Disclosures Tribunal on Thursday

You may recall how allegations against Sgt McCabe were not made known to him for nine years.

Rian counsellor Laura Brophy sent the contaminated retrospective abuse report to Tusla – which is central to the Disclosures Tribunal – following two counselling sessions with Ms D in 2013, on August 9, 2013.

It contained an allegation of rape against another person, referred to as Ms Y – an allegation which had nothing to do with Sgt McCabe.

Ms Brophy said that if she had known that a referral to Tusla had previously been made in relation to Ms D’s 2006 allegation, she wouldn’t have sent the referral.

Earlier this week, at the Disclosures Tribunal, counsel for Sgt McCabe, Michael McDowell argued that as it was known that Ms D’s allegation of 2006 had gone to the DPP – who decided that no charges be brought and observed that it was doubtful the allegations should constitute a crime at all – and that gardai at the time would have been obliged to inform the HSE of all such incidents, this referral should never have been made.

Readers will also recall how earlier this week the tribunal heard that a “private and confidential” letter had been sent by social work team leader Keara McGlone to Superintendent Noel Cunningham on August 15, 2013.

The letter states:

“Dear Superintendent Cunningham, Health Service Executive Child and Family Services have recently received a referral from Rian, a therapeutic counselling service for adult survivors of child sexual abuse. The referral states that Ms. D, now aged 21, has discussed during counselling sessions that she was sexually abused during her childhood by an adult male, M. McC.”

“I note from the social work file that you conducted a criminal investigation into these allegations in 2007. However, it appears the alleged perpetrator was not met with by Health Service Executive at that time.”

“I would like to meet with you to discuss the case prior to making any contact with the alleged perpetrator.”

On Wednesday, Mr McDowell highlighted this letter to point out the inconsistency with Ms Brophy’s decision to send the referral – which turned out to be contaminated with an unrelated allegation.

He asked:

“I am just wondering, how could it be that you [Laura Brophy] were told that there was no evidence of a social work file on the 8th or 9th of August in the course of a phone conversation, when, a week later, people are examining its contents and relying on its contents to contact Superintendent Cunningham?”

Further to this.

This morning, at the tribunal…

Keara McGlone is giving evidence and is being asked about this letter.

She was asked if she received a response from Supt Cunningham to this letter.

She said no.

She was asked if she received a response from anyone on his behalf.

She said no.

She was asked if she made any further inquiries.

She said no. She said she was awaiting allocation for the case and she had no more involvement with it.

She was asked if she was not anxious about the fact that Sgt McCabe had not been met with someone from the HSE.

She said she was working on some 230 cases at that point and the matter wasn’t one of high priority.

Readers will recall how Sgt McCabe first learned of the circulated allegations made against him on December 29, 2015.

The tribunal continues.

Rollingnews

UPDATE:

This afternoon.

During the continuing questioning of social work team leader Keara McGlone.

Mr O’Higgins explained that, in his statement, Supt Cunningham said he was on leave until September, at which point he returned and opened the letter, and then his father died in October.

Mr Charleton said he couldn’t understand why the death of Supt Cunningham’s father would be relevant saying: “We all have dead relatives”.

Mr O’Higgins said that Supt Cunningham “divined from the letter correctly” that the subject of the letter related to the 2006 allegation and while “that doesn’t excuse the non-answering of the letter and he acknowledges that”, he married up the letter with the remainder of a file he had.